By Adv Asim Sarode
For the offence of theft there is punishment of imprisonment of either description
which may extend to 3 years, with fine, or both according to the Indian Penal Code. The
offence of theft is even though cognizable and non-bailable it is compoundable. So
according to the criminal justice jurisprudence when the offence is compoundable then
generally it cannot be term as serious category of an offence. Otherwise also the
seriousness and gravity of an offence can be assessed by the fact and circumstances
involve in any incidence of crime. Every citizen in a free country is having right to do
fair, law based analysis of any judgment given by any courts in India without challenging
the integrity of the person working as judge.
The present case of theft in which poor laborer has been convicted by a
Magistrate Court in Pune with 3 years of imprisonment for attempting theft of some
meager amount is seems to be very harsh punishment. Because according to the facts
mentioned by the police in this case it clearly shows that the accused laborer was arrested
when he was trying to run away with the donation box kept in the temple. That means it
was an attempt to commit theft, as the process of grabbing the money from the donation
box was not even completed and hence there is a mention in the complaint that the
accused was caught raid handed.
So considering the judicious interpretation of the incidence of offence based on
the circumstances mention in the case itself, reasonableness while awarding the sentence
shall be maintained is the accepted principle in criminal law.
Considering the fact that this was the first offence in which the accused was
involved, the Magistrate should have applied the provisions of The Probation of Offender
Act 1958. This Act is about considering the circumstances for release of offender of
certain category on probation or after due admonition. Because it has been considered
according to progressive interpretation of criminal law that persons having no criminal
records and tendency who are first offenders shall not be put in situation which will bring
connection with the obdurate criminals which will results in increasing the criminal
tendencies in any individual. The modern trend of penology, according to which effort to
be made to bring about correction and reformation of the individual offender and not to
resort retributive justice is not seems to be percolated to the level of lower judiciary.
Section 3 of the Probation of Offender Act 1958 gives clear cut authority to the
Magistrate Court to release certain offenders; this principle is supported by section 360 of
Criminal Procedure Code also. But it seems that in today’s age no one is ready to keep
and express reliance on the prospective “good behavior” of persons living with poverty.
The criminal law is concerned with harm that people suffer and other people
cause – harms such as loss of live, bodily injury, loss of autonomy and serious harm to
property. Even though the criminal law’s goal is not to compound the offences, to
rehabilitate or to inculcate the values then also the accepted principle of maintaining ratio
between gravity of offence and quantum of punishment has brought into action as ‘best
practices’ into criminal justice administration. So with due respect the judicial setup it
must be understood that the punishment awarded by the Magistrate Court is not in
accordance with the progressive judgments pronounced by higher Courts and also by the
Apex Court of India.
This case is definitely having strong materials of subject matters to challenge the
conviction as it is also non-proportionate to award 3 years of punishment for attempt to
commit a theft of meager amount of 320 rupees. Here the issues related to fairness, just
and equitable sentence as well as human rights can be brought into action. We all need to
maintain the elementary principal of the Constitution which gives us all equality before
Law and Equal protection of Law. At the same time such types of cases brings a need to
have more sensitive and pro-active implementation of the Laws which are having right
based sense and reformative approach.